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8 Mazanec, Raskin & Ryder Lawyers Named to 2020 Best Lawyers® List

MRR is pleased to announce that eight (8) lawyers have been included in the 2020 Edition of The Best Lawyers in America®, the oldest and most respected peer-reviewed publication in the legal profession. Lawyers on The Best Lawyers in America© list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing.

MRR would like to congratulate the following lawyers named to the 2020 Edition of The Best Lawyers in America© list:

Elisabeth “Lisa” Gentile (Columbus), Medical Malpractice – Defendants; Personal Injury Litigation – Defendants; and Transportation Law

Doug Holthus (Columbus), Commercial Litigation; and Insurance Law

Thomas S. Mazanec (Cleveland), Product Liability Litigation – Defendants

John T. McLandrich (Cleveland), Civil Rights Law

Joseph F. Nicholas, Jr. (Cleveland), Transportation Law

George V. Pilat (Cleveland), Insurance Law

Stacy V. Pollock (Columbus), Education Law

Todd M. Raskin (Cleveland), Civil Rights Law – Lawyer of the Year

MRR Continues Growth in Columbus with Addition of Former Ohio Supreme Court Justice Andy Douglas

Former Ohio Supreme Court Justice Assumes Of Counsel Role in Firm’s Columbus Office

Mazanec, Raskin & Ryder Co., LPA is pleased to announce that Former Ohio Supreme Court Justice Andy Douglas has joined the firm’s Columbus office as Of Counsel in the Public Sector & Business Law Groups. Douglas joins MRR to lend his extensive knowledge of the public and private sector landscape in Ohio, along with his depth and breadth of experience as an Ohio Supreme Court Justice, having served three terms on the high court from 1985 to 2002.

Joseph F. Nicholas, Jr., MRR President and Managing Partner said of Justice Douglas’ addition to the team, “Andy is very well known and highly respected for his deep and far-reaching understanding of the many types of issues faced by our public sector and business clients. We are honored to have him on board and look forward to be able to call on his knowledge and experience that will surely benefit our clients.”

His many accomplishments include serving as special counsel to the Attorney General of Ohio, nine-time elected Toledo City Councilman, as well as working as an adjunct assistant professor at Ohio Dominican College and the University of Toledo Community and Technical Colleges. Justice Douglas served in the U.S. Army Infantry and Signal Corps, from 1954-1956, where he obtained the rank of first lieutenant. He also was a partner with the law firm of Winchester & Douglas in 1960 where he practiced law in Toledo and Lucas County for 20 years, before being elected to the 6th District Court of Appeals in 1980.

Since 2009, Douglas has focused his practice on Complex Litigation, Business Law, and Public Sector Law.

He is a member of the Ohio State, Columbus, Lucas County, and Toledo Bar Associations, in addition to the American Judicature Society, National Political Honor Society, The North Toledo Oldtimers’ Football Association (Trustee), and The Old Newsboys Goodfellow Association. Douglas earned his law degree from The University of Toledo – College of Law.

Over the course of his three terms on the Ohio Supreme Court, Justice Douglas published more than 900 judicial opinions, and he was regarded by many of his colleagues in the legal profession as one of the most intelligent and best-prepared members of the high court during his service.

“His unique understanding of federal government and judiciary procedures along with his reputation within the State and Columbus area are strong assets for our firm,” said Doug Holthus, MRR’s Columbus Office Administrative Partner. “We are thrilled to have him on our team.”

Ohio Adds New Exceptions to the Definition of “Public Records” Relating to Dash-Cam and Body-Cam Recordings

By: Ami Imbrogno

In this day and age, it seems that not a week goes by without turning on the evening news, logging onto Facebook, or firing up a YouTube application and seeing videos depicting police encounters with civilians.  Many of these videos are recorded on private cell phones and released by private citizens; however, some of these videos have been obtained by individuals, news sources, or other entities via public record request, the laws surrounding which are changing.

On January 7, 2019 Governor Kasich signed into law HB 425, “Declare police body camera recordings not to be public records,” to be effective April 8, 2019.  The law does not declare that all dash-cam and body-cam recordings are not public record, but instead declares that “restricted portions” of the recordings are not included in the definition of public record.  The law defines “restricted portions as the following:

  • The image or identity of a child or information that could lead to the identification of a child who is a primary subject of the recording when the law enforcement agency knows or has reason to know the person is a child based on the law enforcement agency’s records or the content of the recording;
  • The death of a person or a deceased person’s body, unless the death was caused by a peace officer or the consent of the decedent’s executor or administrator has been obtained;
  • The death of a peace officer, firefighter, paramedic, or other first responder, occurring while the decedent was engaged in the performance of official duties, unless consent of the decedent’s executor or administrator has been obtained;
  • Grievous bodily harm, unless the injury was effected by a peace officer or the consent of the injured person or the injured person’s guardian has been obtained;
  • An act of severe violence against a person that results in serious physical harm to the person, unless the act and injury was effected by a peace officer or the consent of the injured person or the injured person’s guardian has been obtained;
  • Grievous bodily harm to a peace officer, firefighter, paramedic, or other first responder, occurring while the injured person was engaged in the performance of official duties, unless the consent of the injured person or the injured person’s guardian has been obtained;
  • An act of severe violence resulting in serious physical harm against a peace officer, firefighter, paramedic, or other first responder, occurring while the injured person was engaged in the performance of official duties, unless the consent of the injured person or the injured person’s guardian has been obtained;
  • A person’s nude body, unless the person’s consent has been obtained;
  • Protected health information, the identity of a person in a health care facility who is not the subject of a law enforcement encounter, or any other information in a health care facility that could identify a person who is not the subject of a law enforcement encounter;
  • Information that could identify the alleged victim of a sex offense, menacing by stalking, or domestic violence;
  • Information, that does not constitute a confidential law enforcement investigatory record, that could identify a person who provides sensitive or confidential information to a law enforcement agency when the disclosure of the person’s identity or the information provided could reasonably be expected to threaten or endanger the safety or property of the person or another person;
  • Personal information of a person who is not arrested, cited, charged, or issued a written warning by a peace officer;
  • Proprietary police contingency plans or tactics that are intended to prevent crime and maintain public order and safety;
  • A personal conversation unrelated to work between peace officers or between a peace officer and an employee of a law enforcement agency;
  • A conversation between a peace officer and a member of the public that does not concern law enforcement activities;
  • The interior of a residence, unless the interior of a residence is the location of an adversarial encounter with, or a use of force by, a peace officer; and,
  • Any portion of the interior of a private business that is not open to the public, unless an adversarial encounter with, or a use of force by, a peace officer occurs in that location.

Those exceptions that allow disclosure upon receipt of consent of the subject may only be released with the consent if one of the following apply:

  • The recording will not be used in connection with probable or pending criminal proceedings; or,
  • The recording was used in connection with a criminal proceeding that has been dismissed or for which a judgment has been issued, and will not be used again in connection with any probable or pending criminal proceedings.

 The law also provides that if a public office denies a request to release a restricted portion of a recording, the requestor may file a complaint for mandamus with the court of claims, which will allow the release if it determines by clear and convincing evidence that public interest substantially outweighs privacy interests and other interests asserted to deny release.

Many of these components of the definition fall within other exceptions to public records and government entities are probably already withholding or redacting recordings that contain those components, such as confidential law enforcement investigatory records or information pertaining to the recreational activities of a person under the age of eighteen. However, government employees who handle the release and redaction of records should familiarize themselves with the new definition and continue to follow all other laws relating to public records.  For example, records should be redacted where possible and only fully withheld if redaction would create a substantial burden or would remove all value from the recording.

Government entities should also review their records retention schedules to make certain it addresses this type of footage.  They should remember that even if these materials are no longer public record, they could be relevant to future litigation.

Finally, the new law does not make it clear what procedures are required to be followed in obtaining “consent” to release records; it does not prescribe what lengths the government entity needs to go to in order to obtain consent or in which form the consent must be.  Those who obtain consent to release records should in the minimum ensure that consent is given knowingly and in writing.


For more information on this matter or any other civil rights and government liability questions, contact Ami at aimbrogno@mrrlaw.com or 440.505.2713.

Ami is an Attorney in MRR’s Cleveland office and focuses her practice on civil rights and government liability defense, employment and labor defense, public sector law, and education law.

 

MRR School Alert: Teacher’s Failure to Enter Grades Constitutes Good and Just Cause for Termination

By: Stacy V. Pollock

Ever since the Ohio General Assembly amended the state’s teacher termination statute (R.C. §3319.16) years ago to reference a “good and just cause” standard, school boards have struggled to understand what constitutes “good and just cause.” Last week, an Ohio state court of appeals confirmed that a teacher’s failure to enter her student’s final grades constitutes “good and just cause”, and thus is a terminable offense under R.C. §3319.16.

In Thomas v. Dayton Pub. Schools Bd. of Edn., 2018-Ohio-4231 (2nd Dist., Oct. 19, 2018), the Board of Education initiated termination proceedings against a teacher on four counts including a count of failure to enter final grades for her students. Pursuant to her statutory rights, the teacher demanded an administrative hearing. A Referee took three days of testimony and evidence, and ultimately recommended no termination on all counts except on the charge that the teacher failed to enter final grades for her students.

The Board reviewed the hearing transcript and evidence, rejected the recommendation on the first three counts, and found that all counts were sufficiently supported so as to constitute good and just cause for termination under R.C. §3319.16. As she was permitted to do, the teacher appealed the Board’s decision to the common pleas court. The teacher argued, in part, that the intent of §3319.16 is not served if the Board can reject the Referee’s findings without an explanation.   The trial court may only reverse a board’s order of termination of a teacher’s contract where it finds that the board’s termination order is not supported by or is against the weight of the evidence. The trial court vacated the Board’s Order as to each of the charges except the charge relating to the teacher’s failure to enter final grades.

The trial court affirmed the Board’s decision to terminate based upon the charge of her failure to enter her students’ final grades. The Ohio Second Appellate District reviewed the trial court’s decision to ensure that the trial court had not abused its discretion. The Second District held that the trial court had not abused its discretion.

Like the Referee, the Board and the trial court, the Second District determined that the teacher’s failure to enter final grades into the school’s electronic grading system was sufficiently good and just cause for termination. The evidence did not support the teacher’s explanation that she was unfamiliar with the electronic system used for grades and was therefore unable to submit the grades. The teacher knew that the grades were due, knew that the final grades were critical to students, and she knew that the grades would be due a month before their due date.  Yet, she made scant effort to input the grades on time.

While this matter ultimately was determined in favor of the Board (pending any possible appeal by the teacher to the Ohio Supreme Court), the Board spent over two years of energy and possibly significant financial resources defending the termination. Boards are encouraged to stay apprised of court decisions that assist in defining the §3319.16 “good and just cause” standard.  Mazanec, Raskin & Ryder (MRR) will continue to keep an eye on any other noteworthy cases and report them, accordingly.


For more information on this matter or any other school law questions, contact Stacy at spollock@mrrlaw.com or 614.324.0163.

Stacy is a Partner in MRR’s Columbus office and is a certified specialist in employment and labor law, in addition to a certified Professional in Human Resources. She has considerable experience in education law, representing schools and school administrators involving employee and student disciplinary matters. Stacy also advises public and private employers in matters involving leave and discipline issues, personnel policy matters and labor negotiations and arbitrations.

 

MRR Alert ~ Ohio Supreme Court Makes it Clear: Faulty Work is not Fortuitous

By: Chenee M. Castruita

On October 9, 2018, The Ohio Supreme Court issued its anticipated Decision in Ohio Northern University v. Charles Construction Services, Inc., et al., Slip Opinion No. 2018-Ohio-4057 holding that a subcontractor’s faulty work is not an “occurrence” under a commercial general liability (“CGL”) policy. The Court determined that in the commercial construction setting, an insurer underwriting and issuing CGL coverage is not required to defend or indemnify its policyholder or any named insured against claims for property damage caused by a subcontractor’s faulty workmanship.

A Review of Westfield Inc. Co. v. Custom Agri Sys., Inc. (2012) 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269

In reaching this Decision, the Court re-visited its 2012 holding in Westfield Inc. Co. v. Custom Agri Sys., Inc. In this earlier case, Custom Agri, as a subcontractor, had allegedly faultily constructed a steel grain storage bin. Custom Agri was an insured under a CGL policy issued to it by Westfield Insurance which covered property damage caused by an “occurrence.” Westfield Inc. Co. v. Custom Agri Sys., Inc., 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269 at ¶ 3.At the trial court level, Westfield intervened, seeking declaratory judgment and a determination that it had no duty to defend or indemnify Custom Agri, inasmuch as all claims were related to Custom Agri’s own work and did not involve “property damage” caused by an “occurrence”, as those terms were defined within the Westfield policy. Ohio N. Univ. v. Charles Constr. Servs., Inc., Slip Opinion No. 2018-Ohio-4057 at ¶¶ 13-15, citing Westfield Inc. Co. v. Custom Agri Sys., Inc., 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269.

The Ohio Supreme Court ultimately decided that the Westfield’s policy definition of “occurrence” as being an “accident, including continuous or repeated exposure to substantially the same general harmful conditions” did not include property damage caused by the insured contractor’s own faulty work. Ohio N. Univ. v. Charles Constr. Servs., Inc., Slip Opinion No. 2018-Ohio-4057, citing Westfield Inc. Co. v. Custom Agri Sys., Inc., 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269 at ¶¶ 11-14. The Court reasoned that because an “accident” inherently involves fortuity, and faulty work is not fortuitous, there was no coverage under the Westfield CGL policy related to claims for property damage caused by faulty work. Id. at ¶ 18.

While Custom Agri Sys. was a subcontractor and its policy may have included a products-completed operations-hazard (“PCOH”) clause as well as a subcontractor clause, the Court determined that these separate provisions were not addressed directly. Now, and in its most recent Decision on the issue, the Ohio Supreme Court has directly addressed the effect of PCOH and subcontractor clauses. Id. at ¶ 19.

 

Ohio Northern University v. Charles Construction Services, Inc., et al. (2018)
Slip Opinion No. 2018-Ohio-4057

Factual Background
In Ohio Northern University v. Charles Construction Services, Inc., et al., Ohio Northern University contracted with Charles Construction Services, Inc. to construct the University Inn and Conference Center. The contract required Charles Construction to maintain a CGL policy that included a PCOH clause. Charles Constr. at ¶ 4. Charles Construction obtained a CGL policy with both a PCOH clause as well as a subcontractor clause from Cincinnati Insurance Company. The policy included terms specific to work performed by subcontractors. Charles Construction paid an additional premium for the PCOH coverage. Id. at ¶ 5.

After work was completed, Ohio Northern University discovered water damage from leaks believed to be caused by defective work of Charles Construction and its subcontractors. Ohio Northern University filed suit, and Charles Construction answered and filed third-party complaints against its subcontractors. Charles Construction submitted its claim to Cincinnati Insurance Company and asked that it defend and indemnify Charles Construction. In response, Cincinnati Insurance Company intervened at the trial court level, seeking declaratory judgment and a determination that it was not obligated to either defend or indemnify Charles Construction, due to the earlier Decision in Custom Agri. Id. at ¶¶ 7-8.

The particular PCOH clausecovered property damage “occurring away from premises you own or rent and arising out of  *** ‘your work’ except *** work that has not yet been completed or abandoned”. Charles Constr. at ¶ 24. It further excluded coverage for property damage to the policyholder’s work arising out of it or any part of it.  However the Court  specifically stated the exclusion did not apply if the damaged work was performed by a subcontractor. Id. at ¶ 26.

The Ohio Supreme Court’s Analysis
Despite the Cincinnati Insurance Co. CGL policy containing both PCOH language as well as subcontractor-specific language, the Court found there was no coverage for the subcontractor’s faulty work. Specifically, the Court found the PCOH and subcontractor-specific language had no effect, since the damage was not due to an “occurrence” under the Coverage A portion of the Cincinnati Insurance Co. CGL policy:

“The language within the Coverage A portion of the CGL policy is critical to the policy’s overall effect. It states that CIC agrees to pay for property damage under certain circumstances. But the damage must be due to an “occurrence,” which the policy defines as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Again, there is no question that the water-related damage to the inn was “property damage” and was discovered after the work had been completed. But unless there was an “occurrence,” the PCOH and subcontractor language has no effect, despite the fact that Charles Construction paid additional money for it.

If the subcontractors’ faulty work were fortuitous, the PCOH and subcontractor-specific terms would require coverage. But as we explained in Custom Agri, CGL policies are not intended to protect owners from ordinary “business risks” that are normal, frequent or predictable consequences of doing business that the insured can manage. Here we cannot say that the subcontractors’ faulty work was fortuitous.”

Ohio N. Univ. v. Charles Constr. Servs., Inc., Slip Opinion No. 2018-Ohio-4057 at ¶¶ 28-29, citing Westfield Inc. Co. v. Custom Agri Sys., Inc., 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269.

The Court acknowledged its decision to be contrary to recent decisions of other courts, and cited its duty to look to the plain and ordinary meaning of the language in the CGL policy to find the intent of the parties. Id. at ¶ 32.

Looking Forward
It seems clear from this Decision that the Court considers faulty construction work to be an anticipated business risk of a contractor or general contractor, and will not require an insurer to defend or indemnify against claims or damages arising out of faulty work, at least in cases where a CGL policy exists limiting covered damages to those caused by an “occurrence.”

Contractor and subcontractors should revisit their current insurance risk plans and coverages, and work directly with their respective brokers, agents and insurers to determine the current status of their risk coverages.

We also recommend those contractors that are either anticipating or presently involved in pending litigation reach out to their insurers, agents and/or brokers, immediately, for further guidance.


For more information on Ohio Northern University v. Charles Construction Services, contact Chenee Castruita at 614.324.1039 or via email at ccastruita@mrrlaw.com.

 

Joe Nicholas Named 2019 “Lawyer of the Year” for Transportation Law by Best Lawyers

Mazanec, Raskin & Ryder Co., LPA (MRR) is proud to announce that attorney Joseph F. Nicholas, Jr. has been chosen Cleveland’s 2019 “Lawyer of the Year” in Transportation Law by Best Lawyers. Only one lawyer in each practice area from each of the major metropolitan areas in Ohio is honored as “Lawyer of the Year.” Best Lawyers compiles its lists of outstanding attorneys by conducting thousands of confidential peer-review surveys. Lawyers honored as “Lawyers of the Year” have received particularly high ratings by earning the respect of their peers for their abilities, professionalism, and integrity.

Joe is President and Managing Partner of MRR, which has offices in Cleveland and Columbus, Ohio, and Lexington, Kentucky. He has a diverse legal practice with an emphasis on handling commercial trucking (long haul and short haul) and commercial coach carrier matters. His practice also includes the defense of professionals including lawyers, accountants, doctors, dentists, architects and insurance agents and brokers throughout his career.

In addition, he has significant experience litigating bad faith claims as well as defending various third-party matters, including general liability, product liability and construction defects. Joe has an AV Preeminent rating from Martindale-Hubbell Law Directory and was also selected as a Best Lawyer in America for Transportation Law in 2018.

Prior to being named President and Managing Partner in 2012, Joe served as the firm’s Administrative Partner of its Cleveland office from 2000-2012.

Active in a number of professional organizations, he is a member of the Ohio State Bar Association; the Cleveland Metropolitan Bar Association; the Professional Liability Defense Federation (Past Chair of Insurance Agents & Brokers Committee); Claims and Litigation Management Alliance; the Trucking Industry and Defense Association; and Your House Counsel, in which he currently serves as the Group Chair.

MRR Attorneys named to 2019 Best Lawyers in America® list

Mazanec, Raskin & Ryder Co., LPA (MRR) is pleased to announce that seven attorneys have been named to the 2019 Edition of Best Lawyers®, the oldest and most respected peer-reviewed publication in the legal profession. Lawyers on The Best Lawyers in America© list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise.

MRR would like to congratulate the following attorneys named to the 2019 Edition of The Best Lawyers in America© list:

Todd M. Raskin (Cleveland), Civil Rights Law

John T. McLandrich (Cleveland), Civil Rights Law

Thomas S. Mazanec (Cleveland), Product Liability Litigation – Defendants

Joseph F. Nicholas, Jr. (Cleveland), Transportation Law

George V. Pilat (Cleveland), Insurance Law

Elisabeth “Lisa” Gentile (Columbus), Medical Malpractice – Defendants

Stacy V. Pollock (Columbus), Education Law

 

About Best Lawyers®

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Over 79,000 leading attorneys globally are eligible to vote, and we have received more than 12 million votes to date on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2016 Edition of The Best Lawyers in America©, 6.7 million votes were analyzed, which resulted in more than 55,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.” For more information, visit bestlawyers.com.

Thank you to Carl Cormany for his 17 years of dedication and service!

MRR would like to thank Carl E. Cormany for his dedication and service to the firm over the past 17 years.  Mr. Cormany retired from the practice of law on July 2. His focus was on the defense of claims against local governments and their employees, particularly law enforcement officers, and defense of employment claims against governmental and private entities.

With more than 25 years of legal experience, Carl practiced at all levels of the federal and state courts and in federal agencies including the Equal Employment Opportunity Commission and state agencies such as the Ohio Civil Rights Commission.

“Carl was an integral part of MRR’s success and he will be missed at the firm,” said Todd M. Raskin, Co-Founding Partner of MRR. “We wish him the very, very best as he enters a new chapter in his life!”


US Supreme Court holds that Cell-Site Data is Generally Protected by the Fourth Amendment

By: Ami Imbrogno

Technology has changed rapidly over the past 50 years.  Indeed, just 15 years ago, most people did not imagine that they would be carrying the entire world wide web in one pocket or purse, or that all of their movements would be tracked via cell phone. As technology has developed, more people have become increasingly concerned about the sheer amount of data that is collected by mobile telephone devices, and how this data could be used to invade their privacy. One of last week’s decisions from the Supreme Court, Carpenter v. United States, addressed how privacy concerns, vast amounts of electronic data, and the Fourth Amendment could intersect.

Eight years ago, a string of robberies took place in Michigan and Northern Ohio. Police obtained phone numbers of some suspects involved in the robberies, and subpoenaed cell-site location information (CSLI) for the numbers, absent a search warrant, which they used as evidence placing Carpenter nearby each of the robberies at the times they occurred.  It is not uncommon for law enforcement to obtain this information, and this type of evidence is sometimes even used in insurance fraud prosecutions.

Under the Stored Communications Act, the police did not need or a warrant supported by probable cause to obtain these records from Carpenter’s cell phone provider, but instead, only needed “reasonable grounds” for believing that the records were “relevant and material to the ongoing investigation.”  Carpenter moved to suppress the CSLI evidence, alleging that it was the product of an illegal search under the Fourth Amendment.  The trial court denied the motion, and the Sixth Circuit affirmed the denial based on a decades-old concept called the “third-party doctrine.”

The third-party doctrine was an eventual product of the Supreme Court’s 1967 landmark decision Katz v. United States.  In Katz, the Court announced the rule that under the Fourth Amendment, a “search” occurs when the government intrudes into a sphere in which one has a reasonable expectation of privacy, so long as society is also prepared to recognize that expectation as reasonable. In Katz, the court determined that one has a reasonable expectation of privacy in a conversation held within a closed telephone booth – a concept that seems foreign to those living in 2018.  Since 1967, Fourth Amendment “search” jurisprudence has been based on Katz. Specifically, in the late 1970s, the Court held in United States v. Miller and Smith v. Maryland that one has no reasonable expectation of privacy in papers or effects that he or she trusts to the hands of a third party – i.e., banking records or records of phone numbers dialed.  Thus, the third-party doctrine was born.

Perhaps recognizing that most people entrust their entire lives to third parties in the digital age (who doesn’t have their emails, schedules, search histories, and location data stored by a third party like Google or Apple?) the Court ruled in Carpenter’s favor and crafted a narrow decision holding that generally, the government’s acquisition of cell-site records constitutes a search under the Fourth Amendment.  Though the records are stored by third parties, cases involving CSLI are inherently different than previous cases involving bank records or dialed phone numbers because they provide a complete picture of a person’s movements for a period extending to five years. And, though CSLI technology was less complete at the time of Carpenter’s arrest and could only provide information about a general area in which a particular mobile device is located, the Court expects that CSLI will only get more precise as technology improves.

The Court was careful to clarify that its decision does not apply to any aspect of technology other than CSLI, and that it was not announcing an opinion relating to security cameras, national security measures, or other forms of technology.  However, Carpenter opens the door for defendants to at least argue that certain types of technological evidence cannot be obtained absent a warrant, if they implicate privacy interests. If the third-party doctrine does not apply to CSLI, to what other types of evidence will courts refuse to apply the doctrine?  What records are so intrusive upon privacy that the third-party doctrine does not apply to them?

Furthermore, the majority opinion in Carpenter was only supported by five of the nine justices.  All four dissenting justices filed separate dissenting opinions.  Justice Gorsuch and Justice Thomas both suggested in their dissents that the Court scrap the “reasonable expectation of privacy” test announced in Katz and consider that the founding fathers originally intended the Fourth Amendment to be a protection of property rights, not a protection of “privacy.” A search would therefore occur when the government searched a person’s “property.”

The ideas set forth by Justice Gorsuch and Justice Thomas were not unlike those espoused by the late Justice Scalia in United States v. Jones (which involved the placement of a GPS tracker on a defendant’s vehicle).  Should these justices persuade other justices to their point of view, or if like-minded justices join the Court, we could see a radical shift in the definition of a “search” under the Fourth Amendment, which would necessitate new rules for when warrants are required prior to a search.

It is also unclear under Carpenter whether police will be able to obtain these records if a third party voluntarily provides them to police, absent solicitation from law enforcement.  Specifically, if an insurance company were to obtain CSLI from a provider, and then the insurance company provides that information to the police absent a police request, will the evidence be available to use in a prosecution of the insured for insurance fraud?  Prior to last Friday, it would be easy to say that the records could likely be used without implicating the Fourth Amendment.  In the wake of Carpenter, however, it is not unforeseeable that a defendant may try to argue that the special character of CSLI bars the police from using the non-solicited records, too.

For the time being, it is clear that under Carpenter, a “search” occurs when the government obtains CSLI.  One must not forget that warrants only need to be obtained for “unreasonable” searches.  The Court did not state how much CSLI data must be sought before a search is considered unreasonable.  In addition, the Court also held that exceptions to the warrant requirement, like exigent circumstances, would still apply to CSLI.

The current best practice for law enforcement in the wake of Carpenter is to obtain a warrant whenever possible when seeking CSLI.  Should the data be needed in exigent circumstances – for example, quickly to save a person’s life – a warrant may not be needed.  However, if an officer has probable cause to support a warrant, and exigent circumstances do not exist, it is best to obtain a warrant, no matter how much data is being requested.  Moreover, law enforcement should not be surprised if searches not backed by warrants are challenged more frequently in courts of law, and may expect to see further changes to the law and procedure down the road.


For more information or questions regarding this article, contact Ami Imbrogno at aimbrogno@mrrlaw.com.

Ami Imbrogno

Mazanec, Raskin & Ryder Welcomes Steven Kelley to Cleveland Office

Mazanec, Raskin & Ryder (MRR) is pleased to announce that Steven K. Kelley has joined the firm’s Cleveland office as a Partner in its Professional Liability Practice Group.

Prior to joining MRR, Steve worked at CNA Insurance Company for over 12 years, initially as a Managing Trial Attorney and then an Assistant Vice President in the company’s litigation department.

At MRR, his practice will focus on the defense of architects and engineers as well as other professional liability matters and product liability claims.

“With Steve’s experience and leadership in the insurance industry, his addition highlights our commitment to enhancing both the breadth and quality of services that we can provide to our clients,” said MRR President and Managing Partner Joseph F. Nicholas, Jr. said. “We are thrilled to welcome him to the firm.”

Mr. Kelley earned his Juris Doctorate from Case Western Reserve University School of Law and he received his Bachelor of Arts degree from Ohio Northern University. He is active professionally as a member of the Ohio Bar Association, Claims and Litigation Management Alliance, Cleveland Association of Civil Trial Attorneys (Former President), Defense Research Institute, and is a Life Member of the Eighth Judicial District Conference.